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Supreme Court 8 May 2019

R v Rogers (No 5)

[2019] NSWSC 687

Homicide
EVIDENCE CROSS EXAMINATION OF UNFAVOURABLE WITNESS

Citation: R v Rogers (No 5) [2019] NSWSC 687
Court: Supreme Court of New South Wales
Date: 8 May 2019
Judge: Lonergan J

Background

The accused stood trial for murder in the Supreme Court. A central issue was whether he suffered from substantial impairment at the time of the offending, a partial defence that, if established, would reduce murder to manslaughter. The accused's daughter was called as a witness and gave evidence touching on his mental state in the period leading up to the death.

During the trial, the Crown applied under section 38 of the Evidence Act 1995 (NSW) for leave to cross-examine the daughter as an unfavourable witness. The application was made on day 7 of the trial. The Crown sought to challenge her evidence on two main fronts: first, on the basis that a statement she made to police in September 2016 was inconsistent with evidence she gave at a previous trial in 2018; and second, on the basis that a recorded gaol call showed she had actively helped the accused construct his substantial impairment defence.

The defence opposed the application, arguing it was brought too late, that no genuine inconsistency existed between the police statement and the earlier trial evidence, and that permitting the cross-examination would be unfair to both the accused and the witness under section 192 of the Act.

Legal Issues

  • Whether the daughter's police statement contained a prior inconsistent statement within the meaning of section 38 of the Evidence Act 1995 (NSW), when compared with her evidence at the previous trial
  • Whether leave to cross-examine should be refused on the ground that the section 38 application was made too late in the proceedings
  • Whether cross-examination was permissible on the basis that the daughter's evidence regarding the accused's impairment was unfavourable to the Crown
  • Whether the contents of a recorded gaol call supported the Crown's assertion that the daughter had actively assisted the accused in constructing a substantial impairment defence
  • Whether the proposed cross-examination satisfied the requirements of section 192 of the Evidence Act, including considerations of fairness, importance, and the gravity of the proceedings

Decision

Issue 1: Late notice of the section 38 application

Lonergan J found that the lateness of the application was not an automatic basis for refusal. It was one factor among several to be weighed under section 38, and the court took the view that the timing could be managed provided defence counsel was given sufficient opportunity to make further enquiries and confer with the witness (at [24]).

Issue 2: The alleged prior inconsistent statement

The Crown argued that paragraph 20 of the police statement, read alongside the daughter's 2018 trial evidence, showed an inconsistency about why the accused was no longer babysitting the grandchildren. Lonergan J rejected this characterisation. The court found that paragraph 20 addressed specific arrangements made for the days immediately before the death, not a general statement about the accused's babysitting capacity (at [26]-[31]). Reading the statement in its full structural context, the court was satisfied there was no prior inconsistency, and leave to cross-examine on that basis was refused (at [25], [31]-[32]).

Issue 3: Unfavourable evidence about the accused's impairment

The court accepted that, in broad terms, the daughter's evidence about the accused's signs of impairment was unfavourable to the prosecution. Leave was granted on that narrower basis (at [32]).

Issue 4: The gaol call and the substantial impairment defence

Lonergan J found that the gaol call did not support the Crown's more pointed assertion that the daughter had "actively assisted" in setting up the defence. However, the court accepted a more neutral formulation: that she openly discussed with the accused the upcoming psychiatric interview and suggested things he might say (at [33]-[34]). Cross-examination on that basis was permitted. The court also found it permissible to put to the witness that she was exaggerating her account of the accused's mental state out of love for him, consistent with the Crown's prosecutorial fairness obligations identified in R v Kennedy [2000] NSWCCA 487 (at [35]).

Issue 5: Section 192 considerations

The court was satisfied that the modified bases for cross-examination were unlikely to lengthen the hearing materially, were not unfair to the accused or the witness, and went to the heart of critical issues in a murder trial (at [36]). Defence counsel was offered an adjournment but declined it as unnecessary (at [36]).

Orders Made

  • The Crown is permitted to cross-examine the daughter as an unfavourable witness on:
  • (i) her observations relevant to the accused's impairment
  • (ii) the contents of the gaol call of 14 October 2016, to the effect that she openly discussed the forthcoming psychiatric interview with the accused and suggested things he could say in that meeting
  • (iii) the proposition that she was exaggerating her evidence of the accused's mental state to assist him at trial, given her love for him

Key Takeaways

  • Under section 38 of the Evidence Act 1995 (NSW), leave to cross-examine an unfavourable witness cannot be granted on the basis of a prior inconsistent statement unless a genuine inconsistency is established. A police statement addressing specific day-to-day arrangements does not become inconsistent with general trial evidence simply because the two accounts deal with different levels of generality (at [25]-[31]).

  • Late notice of a section 38 application is a relevant consideration under the legislative framework but is not, by itself, a disqualifying factor. The court retains a discretion to manage the timing issue, including by offering an adjournment to the party affected (at [24]).

  • Where evidence from a witness is unfavourable to the party who called them, leave to cross-examine on that narrow basis may still be granted even where the more expansive grounds asserted by that party are rejected (at [32]).

  • Consistent with R v Kennedy [2000] NSWCCA 487, the Crown's duties of fairness may require that a witness be given an opportunity to respond to propositions the Crown intends to advance to the jury in closing submissions. The Supreme Court applied this principle to permit cross-examination on whether the witness was exaggerating evidence out of partiality for the accused (at [35]).

  • Section 192 of the Evidence Act requires the court to work through all relevant factors before granting leave under section 38. Factors including importance to the issues at trial, absence of undue length, and the gravity of the charge (murder) weighed in favour of the modified grant of leave in this case (at [36]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW) ss 38 and 192

Cases
- R v Kennedy [2000] NSWCCA 487